Escolar Documentos
Profissional Documentos
Cultura Documentos
2d 162
John W. Burk, Casper, Wyo. (Mayne W. Miller, Casper, Wyo., and Walter
C. Urbigkit, Jr., Cheyenne, Wyo., on brief) for appellants.
Bard Ferrall, Cheyenne, Wyo., for appellee.
Before LEWIS, SETH and HICKEY, Circuit Judges.
DAVID T. LEWIS, Circuit Judge.
Plaintiffs adopt and incorporate herein by this reference all the allegations and
averments of paragraphs one through 13 of the First Claim.
1. Following the burning of said aircraft and the death of Betty Smith Wood,
and for a period of more than twenty-four hours after such death, the
Defendant, United Airlines, Inc., its agents, servants and employees, falsely and
deliberately maintained to Plaintiffs that Betty Smith Wood had not been
aboard the said aircraft and was therefore unharmed in the disaster. Defendant
refused to permit any member of the family to view the remains of Betty Smith
Wood for the purpose of making identification and repeatedly insisted to
members of the family throughout the day following the tragic accident that
Betty Smith Wood was not aboard the aircraft, and told Plaintiff George T.
Wood that he should seek the whereabouts of the deceased by contacting a
missing persons bureau.
2. Defendant had a duty to plaintiffs to know whether the deceased Betty Wood
was on board the crashed airliner and to inform plaintiffs upon their inquiry
within a reasonable time after the accident that said decedent was aboard, but
defendant negligently failed to learn the true facts or else upon learning them
negligently failed to inform plaintiffs who began inquiring immediately after
the accident and continued to for a period of many hours. Plaintiffs allege that
the failure of defendant to inform them that decedent was aboard the aircraft
and had died in the resulting fire within a reasonable time after inquiry made
caused each of them increased mental anguish and suffering, additional
expense to learn the facts, and constituted actionable negligence to their
damage in the sum of $100,000.00.
FIFTH CLAIM
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2. Plaintiffs allege that following the accident defendant had possession of the
dead body of decedent and that defendant continued to exercise control over the
decedent's body until the time that said body was formally identified at the
Deseret Mortuary in Salt Lake City through the recognition of certain items of
jewelry worn by decedent at the time of her death. This identification was made
at approximately 9 o'clock P.M. on November 12 or some 27 hours following
the accident. Plaintiffs allege that the failure of defendant during the
intervening time from the accident until the time of such identification to
identify the said body to plaintiffs and to offer to turn over the body to plaintiffs
constituted a tortious interference with plaintiff's rights to the body of decedent,
causing plaintiffs increased and undue mental anguish and suffering and that
such misconduct on the part of defendant is actionable negligence to plaintiffs'
damage in the sum of $100,000.00.
The trial court did not dismiss these claims as not actionable on their face but
did so in view of facts considered to be both determined and undisputed as
exposed by discovery procedures. Our review is premised accordingly.1
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the fire. No statute, regulation, or rule of common law imposes a duty upon a
carrier to know the identity of its passengers and, again, discovery procedures
established that post-death identification was conducted under the direction of
the Civil Aeronautics Board. The trial court properly summarily denied this
claim.
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The Third Claim attempts to impose liability upon United for emotional
distress of mind and body occasioned appellants through statements made by
United to members of the Wood family and presumably communicated to
appellants during the hectic period when appellants sought information
concerning the fate of Mrs. Wood. We cannot negative such a claim as
unknown to the law although 'damages for mental pain and suffering, where
there has been no physical injury, are allowed only in extreme cases.' United
States v. Hatahley, 10 Cir., 257 F.2d 920, 925, 79 A.L.R.2d 668. A generality
pertaining to the rule is set forth in Restatement of Torts, 2d, 46, thus:
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Against an entirely different factual background the Utah Supreme Court has
recognized and applied the substance of the rule stating:
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'Our study of the authorities, and of the arguments advanced, convinces us that,
conceding such a cause of action may not be based upon mere negligence, the
best considered view recognizes an action for severe emotional distress, though
not accompanied by bodily impact or physical injury, where the defendant
intentionally engaged in some conduct toward the plaintiff, (a) with the purpose
of inflicting emotional distress, or, (b) where any reasonable person would have
known that such would result; and his actions are of such a nature as to be
considered outrageous and intolerable in that they offend against the generally
accepted standards of decency and morality. This test seems to be a more
realistic safeguard against false claims than to insist upon finding some other
attendant tort, which may be of minor character, or fictional.' Samms v. Eccles,
11 Utah 2d 289, 358 P.2d 344, 346-347.
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false and deliberate only in that sense. In fact, a reckless error made conversely,
that Mrs. Wood was on board when she was not, might well have been
actionable. See Kaufman v. Western Union Tel. Co., 5 Cir., 224 F.2d 723. Nor
does the suggestion, as pleaded, that appellants contact a missing persons
bureau allege conduct outrageous in fact or law when considered in isolation.
However, as with our determination of the Fourth and Fifth claims, we must
again give consideration to the complete discovery record to review the trial
court's summary disposition of this aspect of the case.
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The judgment of the trial court is affirmed as it pertains to Claims Four and
Five; the judgment is reversed as to Claim Three and the case remanded for
further and appropriate proceedings. No costs are awarded.
The parties have not cited, nor has the court found, a single reported case that
has any factual similarity to the case at bar
'I was directed to the United chief at the scene * * *, he represented himself to
be United's senior spokesman at that location. He was very pleasant to me. I
explained to him I was there on behalf of the Wood family to learn about the
fate of Betty Smith Wood. He told me United had no knowledge of her being
on the plane and that she was not on the passenger list. I asked him if it was
possible for her to be on board without United's knowledge. He said there was a
small possibility of this but it wasn't probable. He said she might not have got
on in Denver, might have met with foul play there, or could have met a man
there to go somewhere with him. I told him this wasn't possible, she wasn't that
kind of woman and besides she was a member of a very close family and was
coming here to the funeral of her brother. He told me to check with the police
and Missing Persons Bureau at Denver.' '* * * Shortly after we arrived home
we heard a United Airline plane had crashed, and having just returned from the
Smith home knew Betty was to arrive on this plane. I immediately telephoned
United Airlines and was told Betty's name was not on the passenger list. I
explained to this United Airline personel Betty was due in on this plane and he
suggested she perhaps had met some one in Denver and gone with him by
prearrangement. I told him Betty was not this kind of a person and that she was
coming to Salt Lake City to be with her Mother and other relatives and to attend
the funeral of her brother. * * *' '* * * Even though I explicitly explained to this
United Airline official I had this information from firemen at the scene, he
argued with me that 40 bodies had been taken from the plane and that there was
not an extra body. He insisted that Betty had not got on at Denver, was not
aboard the crashed aircraft, and again United inferred she must have gone
elsewhere with some one at Denver.'
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